Illinois Workers' Compensation Act

Whether you own or run a business or are an employee, chances are that you will eventually be faced with a workplace injury. Like most states, Illinois has special rules and procedures for such injuries.

Prior to the passage of the Illinois Workers’ Compensation Act, an employee injured at work had no remedy against the employer unless the employer was negligent in some manner. To correct this situation, the Legislature created the Act which states that if an employee is injured and the injury arose out of and in the course of the employment, then the employee has a workers’ compensation claim regardless of the employer’s fault. Accordingly, the Illinois Workers’ Compensation Act is characterized as remedial litigation, meaning it was passed by the Legislature to cure an existing inequity. To counterbalance these legislative enactments which no longer require a worker to prove fault, the Legislature in turn limited recovery for workers to only specified categories of benefits.

Under the Act, employees are entitled to three (3) categories of benefits:

1. Payment of all reasonable and necessary medical expenses to treat the injury.

2. Payment of two-thirds (2/3) of their average weekly wage while the employee is unable to work, which is referred to as Total Temporary Disability (TTD) benefits.

3. Payment of Permanent Partial Disability (PPD) benefits based upon the schedule of benefits under the Act.

A person’s average weekly wage is defined as the regular earnings of the employee for the fifty-two weeks preceding the injury. Generally, overtime pay is excluded unless it is consistent and regular over that fifty-two week period and is only included at the regular hourly rate.

Under the Act there are certain time limits that must be met. First, the employer must be notified, either orally or in writing, within forty-five days of the accident. Second, a claim must be filed within three years of the date of the accident. There are some exceptions to extend the time to file a claim, but it is safer to file a claim sooner rather than later if you are an employee. Therefore, when a person is injured at work, she should first obtain medical treatment, then notify her employer of the injury, and finally see an attorney to determine what her rights are. If you are the employer, all such claims should be turned in to your workers’ compensation insurance carrier. As an employer, the law requires you to have such insurance as a general rule.

The Act is entirely statutory and, therefore, the rights of recovery are specifically established under the Act. The Act identifies specific body parts for which the Act sets a certain amount of weeks in determining any recovery for disability. In determining disability, there are two key factors: the extent of disability and the PPD rate. The PPD rate is based upon a person’s average weekly wage and is determined by calculating 60% of the average weekly wage, which cannot be below the minimum or above the maximum set by the Act. The minimum and maximum wage rates are adjusted periodically. For example, if a person injured her leg (which has a rating of 215 weeks), had a ten percent disability, and had an average weekly wage of $500, the recovery would be $6,450, which is calculated by $300 (60% of $500) times 21.5 weeks (10% of 215 weeks). In addition to the specific body parts, there are other categories for persons as a whole, loss of sight, loss of hearing and scarring.

The Act states that an employee has a right to choose two doctors to treat her for the injury. This does not preclude the employer from obtaining a medical examination independent of the treating doctors. Under the two doctor rule any referrals by a previous doctor are not considered new doctors. For example, the employee sees Doctor Smith, the family practitioner. Doctor Smith refers the employee for an x-ray which is read by Doctor Jones. Doctor Smith then refers the employee to Doctor Brown, an orthopedic specialist. Doctor Brown then refers the employee to Doctor White, a pain specialist, for treatment. Although the employee has seen four doctors, under the two doctor rule the employee has only seen one doctor — the family physician.

The Illinois Workers’ Compensation Act is a complex, ever evolving act. Because this is a complicated area of the law, if you are injured at work, you should consult with an attorney regarding your rights under the Act. If you do suffer an injury at work, no matter how small, no matter how minor it may seem to you, it is best to seek medical treatment and report the accident to your employer. If the injury is indeed a minor one, and can be treated with one visit to a doctor or an emergency room, all the better. However, if appropriate notice is not provided and a minor injury expands into a major injury, you may have forfeited your rights. If you are the employer, make sure you have appropriate insurance coverage and that all claims are immediately reported to your carrier.

by Sarah Delano Pavlik